Judge denies Secretary of State’s request to correct primary vote count before General Election

by Kate Shunney

Morgan County Circuit Judge Debra McLaughlin on Friday denied a petition from the West Virginia Secretary of State asking her to decertify the results of the May primary election so that a corrected vote total could be certified as the official results.

The Secretary of State’s office oversees state elections.

The November 4 hearing came on the heels of an October investigation into the location of 357 local ballots that were not included in the May primary election totals.

Those ballots were located on voting machine memory drives and counted. The new totals did not change the outcome of any of the races.

Morgan County’s commission, which sits as the election Board of Canvass, invited the Secretary of State’s office to file the petition so the county and state could correct the vote totals.

Judge McLaughlin said the timing of the request conflicted with West Virginia election law.

“You want me to decertify the election and recertify it right before the general election,” said the judge.

She told attorneys and Commission President Sean Forney that state law prohibits that kind of action within 10 days of an election. The hearing was held on November 4, just four days before the general election.

Secretary of State’s attorney Harry Capehart argued that the time limit doesn’t apply in a case where the names on the ballot would not change.

“This is not an issue regarding the ballot, just to make sure votes are updated,” said Capehart.

Judge McLaughlin cited a different case in which the Kanawha County Commission also failed to reconcile polling books to vote totals. In that case, the Supreme Court of West Virginia declined to let the county correct their final vote tally.

McLaughlin said she didn’t have the power to overturn vote totals so close to the general election.

“I don’t think I have jurisdiction to do anything,” said Judge McLaughlin.

Morgan County Prosecuting Attorney Dan James argued that the court could grant the state’s request for the sole reason of making the vote count accurate.

“The County Commission has a duty to make sure the vote count is correct,” said James. “We want to make sure voters are not disenfranchised.”

James said this is important because of claims and concerns about voter fraud in the last few years.

“This wasn’t a voting machine problem. This was human error,” he said. “We have a duty to make sure we have an accurate count.”

James argued the court could delay its decision until after the general election since the decertification wouldn’t affect any candidates or general election ballots.

“The bottom line is we’re within 10 days of the election and I’m not touching the results now,” said McLaughlin.